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CIRCULAR No

CIRCULAR No. 129/1999/TT-BTC OF NOVEMBER 5, 1999 GUIDING THE MECHANISM OF MANAGING THE LOAN CAPITAL FOR THE SPECIALIZED CREDIT PROGRAM OF THE JAPAN BANK FOR INTERNATIONAL COOPERATION (JBIC)

Pursuant to Decree No. 90/1998/ND-CP of November 7, 1998 of the Government promulgating the Regulation on Borrowing and Paying Foreign Debts and Decree No. 87/CP of August 5, 1997 of the Government promulgating the Regulation on the Management and Use of Official Development Assistance (ODA);

Pursuant to the Credit Agreements signed between the Government of the Socialist Republic of Vietnam and the Overseas Economic Cooperation Fund of Japan (OECF) for the Specialized Credit Program - the OECF has been integrated into the Japan Bank for International Cooperation (JBIC);

After consulting the related agencies, the Ministry of Finance provides the following guidance for the mechanism of managing the loan capital of JBIC for the specialized Credit Program:

I. GENERAL PROVISIONS

1. The Program for developing the rural infrastructure and raising the living standard of the population (referred to as the Specialized Credit Program for short) is a program using the loan capital of JBIC to build rural infrastructural works in the whole country, including the domains stipulated in the Agreement.

2. The loan capital under the Specialized Credit Program is the JBIC loan of the Government included in the State budget and used to make annual investment in capital construction in the provinces. The domains and projects under the Specialized Credit Program of which the mechanism of reloaning has been adopted shall be effected according to the Regulation on Reloaning issued together with Decree No. 90/1998/ND-CP of November 7, 1998 of the Government. This capital shall be managed according to the prescriptions of the Law on the State Budget, the documents guiding its implementation and the current spending regimes. The Ministry of Finance has the responsibility to pay the debt to the foreign side when it is due (comprising both capital and interest).

3. The Ministry of Planning and Investment (Program owner) shall assume the main responsibility in working out the plan of using the specialized credit for the projects financed by the corresponding reciprocal capital (with reference to the criteria of JBIC); elaborating documents to guide the local managerial agencies on the planning and directing the execution of the projects in the locality. The Program Owner shall set up the specialized Program Management Board to manage and monitor the implementation of the program.

4. The Bank for Foreign Trade of Vietnam (Vietcombank), assigned by the Ministry of Finance with the task of providing foreign payment services, shall have to sign the Bank Protocol with the foreign side on the basis of the Agreement on Capital Loan with JBIC.

5. The People�s Committees of the provinces and cities and the State management agencies in the localities shall have to manage the use of the capital according to their functions under the guidance of the Program Owner and the Ministry of Finance and in accordance with Decree No. 52/1999/ND-CP of July 8, 1999 of the Government and the commitments in the Credit Agreement signed with JBIC.

II. CONCRETE CONTENTS

1. The loan from JBIC shall account for 75-85% of the project value, composed of the following:

- Allocation to hire foreign consultants.

- Allocation to import goods and equipment from within the country and abroad for the projects.

- Allocation to pay for the volume of construction and implementation of the programs and projects in the country.

- Charge for withdrawing JBIC loan capital at the rate of 0.1% of the JBIC debit recorded right at the time of the withdrawal.

2. Reciprocal fund in the country:

Reciprocal fund in the country can be taken from the local budget or other sources in order to ensure the right timetable of using foreign capital in each planned phase of the project. This capital must represent 15-25% of the value of the project to cover:

- Expenses in the country to pay the importer: The cost of import trust, goods import tax, VAT (if any), expenses on reception, supply and transportation of goods from the port to the project (for projects needing goods import).

- Expenses on compensations for land clearance, survey and designing of the project and management cost (during the construction period).

- Banking service charge in the country.

- Insurance premium for the project.

- Payment of amount retained pending payment after the warranty period or pending final settlement of accounts.

The localities must themselves ensure the reciprocal capital in the country. This capital shall be integrated in the annual local budget balance of expenses. The principle for allocating the reciprocal capital shall comply with Joint Circular No. 06/1998/TTLT-BKH-BTC on the mechanism of managing the reciprocal capital for the programs and projects using ODA funds.

3. Signing and approving the contract:

The signing and approval of the contract shall comply with the following process:

3.1. With regard to the contract on hiring consultants and contract on purchase of imported goods, materials and equipment:

- The Program Owner shall organize and chair the bid and negotiate the contract on hiring consultants and contract on purchasing goods, materials and equipment for the program or project with valid suppliers of goods and services as stipulated in the Agreement.

- The Program Owner shall select the units to assign the transaction and signing of contract on goods import, and fill procedures for reception and delivery of the goods up to the site of the project (hereafter called the Importer). The Program Owner directly signs the contract on hiring foreign consultant (or consultants) for the entire program.

- After signing the contract, the signatory shall duplicate the signed contract, send one copy to the JBIC and the other to the Ministry of Finance for filling the procedures of approval of the contract.

- After receiving the notification on approval of the Contract by the JBIC, the Ministry of Finance (the External Financial Relations Department) shall consider and ratify the contract and notify the Program Owner and the Importer thereof in order to carry out the Contract, at the same time notify Vietcombank for filling external relations procedures to pay the supplier of goods or the foreign contractor (if any).

3.2. With regard to the contract on the volume of construction, the implementation of the program or project shall be performed by the contractor in the country:

- After being assigned the capital plan of JBIC, the investors shall proceed with bidding as currently prescribed and shall sign contracts with the contractors.

- In special cases where there is no bidding, the investor�s controlling agency shall designate the contractor as currently prescribed and assign the investor to sign the contract with the contractor.

- In the contract, the portion of value to be funded by the JBIC loan must be determined.

- The contracts must be approved by the investor�s controlling agency and sent to the provincial/municipal Planning and Investment Service which is the agency assigned by the Program Owner to organize, manage and execute the projects using JBIC fund in the locality in order to fill the procedures for approval of the projects using JBIC loan.

- Contracts valued at less than 30 billion VND (equivalent to 0.3 billion JPY) that are approved by the provincial/municipal Planning and Investment Service and included in the list sent to the Program Owner are contracts that have been approved. The Program owner shall have to send the list of such contracts to JBIC and the Finance Ministry for implementation coordination.

- Contracts valued at more than 30 billion VND (or more than 0.3 billion JPY) must be approved by the investor�s controlling agency and sent to the Ministry of Finance and JBIC to fill the procedures for approval of contracts using JBIC loans.

4. Mode of capital withdrawal:

- With regard to contracts on consultancy and procurement of foreign equipment: The expenses in foreign currency in the contract shall apply the mode of Letter of Undertaking or Special Account for payment. The expenses in domestic currency (VND) shall apply the form of money transfer or reimbursement for payment.

- With regard to the contracts signed for the procurement of equipment and construction in the country, the mode of capital withdrawal from the Special Account for payment shall apply as prescribed in Section III below.

- On the mandate of the Ministry of Finance, Vietcombank shall open a Special Account in JPY and the Interest Account of the Special Account at the Tokyo-Mitsubishi with the Ministry of Finance (the External Financial Relations Department) as account owner. The Ministry of Finance (the External Financial Relations Department) shall fill the procedures for the first capital withdrawal and supplementary capital withdrawal from the Special Account as prescribed by the Agreement. The first capital withdrawal does not need accompanying certificates.

- In the country, the Ministry of Finance shall propose Vietcombank to open reciprocal special purpose accounts, regarding the Special Account and the Interest Account of the Special Account in the name of the Ministry of Finance (the External Financial Relations Department) in order to monitor and calculate the withdrawn amount and the arising interest on the Special Account as well as the eventual debt payment.

III. PROCESS OF PAYMENT TO THE DOMESTIC CONTRACTORS

1. Objects of payment:

- The constructions (hereunder called projects) to be paid from the Specialized Credit Program are constructions lying in the annual plan of using JBIC capital allocated by the Ministry of Planning and Investment and notified to the localities.

- The valid contractors are contractors listed in the decision of bid winner for the projects or designated as contractors to implement the projects in conformity with current regulations (hereafter called contractors)

2. Payment proposal dossiers and requirement for dossiers:

When proposing payment, the investor shall have to prepare the dossier comprising the following:

- The whole dossier proposing payment from JBIC capital shall be made according to the current payment procedures for capital construction in the country.

- The contract signed between the Project Owner and the Contractor (copied from the original) already approved for use of JBIC capital.

- A written proposal for payment by the Contractor according to form (two original copies) accepted by the Investor.

- The list of the amounts paid according to the contract (in case a contract is paid in many installments).

- The verification certificate of the volume of capital construction completed by the direct managing agency allocating investment capital in which the amount proposed for payment from JBIC loan (two original copies) must be specified.

3. Process of payment and supplementary capital withdrawal:

a/ In case of advance payment: The Contractor shall be paid in advance at the level stipulated in Decree No. 52/1999/ND-CP of July 8, 1999 of the Government on condition that the clause on advance payment must be concretely specified in the Contract and that in the payment proposal dossier, there must be also a Guarantee of the advance issued by a commercial bank of the State or a creditable joint venture bank. The process of payment is similar to that in the following Clause (b).

b/ In case of payment of finished volume:

- After the contractor finishes the volume of project, the investor shall gather the set of vouchers and send it to the local agency directly managing the allocation of capital in order to check the volume of capital construction already finished as currently prescribed on investment in capital construction. The total amount proposed for payment must be equal to the value of the finished volume of construction already evaluated and lie in the amount financed by JBIC capital stipulated in the contract.

- After the result of examination by the agency managing investment is available, the investor shall gather a set of dossiers (as stipulated in Section 2 above) and send it to the Program Owner.

- Every two weeks, the Program Owner shall gather and check the valid sets of dossiers he has received, compare them to the capital plan already allocated and the list of contracts drawn up by the provincial/municipal Planning and Investment Service and send them to the Ministry of Finance (the External Financial Relations Department). The documents sent to the Ministry of Finance comprise a payment proposal of the contractor (original copy), a declaration of the amounts already paid (if any), a certificate of examination of the volume of capital construction already finished (original), the integrated proposal for payment (original) signed by the Director of the Project Managing Board located at the Ministry of Planning and Investment.

- Within 7 days after receiving all the necessary dossiers from the Program Owner, the Ministry of Finance shall base itself on the balance in the Special Account and propose Vietcombank to transfer the money within three days to the contractors according to the account number designated by the contractor in the payment proposal. After the money transfer, Vietcombank shall send to the Ministry of Finance the notice of money transfer attached to the transfer vouchers of the bank to each contractor so that the Ministry of Finance can fill the procedures for capital withdrawal for the Special Account.

c/ The allocation of other advance payments (when the volume has been finished but not yet paid from JBIC capital) shall be effected from local capital sources. When drawing up the dossier to propose payment, the contractor shall propose the transfer of money into the account of the local budget attached to the certification of money receipt and a copy of the voucher of this advance payment in order to pay back the capital advanced to the local budget.

IV. VARIOUS KINDS OF CHARGES

1. Bank charges, comprising:

- Service charges for payment in the country: Vietcombank shall collect these charges according to the rate of service charges reserved for the Program of Projects of JBIC as determined by the General Director of the Foreign Trade Bank.

- Service charges for external relations payment: to be paid according to the actual amount asked by the foreign bank.

The concrete collection of charges shall be conducted as follows:

- For the charge on money transfer to pay foreign debts: Vietcombank can on its own register the debt of deposit account of the State Bank (opened at Vietcombank).

- For the charges related to the opening and payment of L/C for goods import and consultancy service: Vietcombank shall collect charges from the consigned importer or from the interest account on the Special Account if the L/C opener is the Program Owner. In case the Interest Account is not enough to pay the charges, Vietcombank shall notify the Ministry of Finance in order to find source(s) to pay the charges.

- For the money transfer to the contractor of construction in the country: The bank charge shall be taken from the payment to the contractor. Depending on the contract signed with the Investor, the contractor may bear this charge or base himself on the charge notification of Vietcombank to ask the Investor to pay back from the reciprocal capital.

2. Charges for Importers

The Importer selected by the Program Owner shall have to negotiate and sign the contract of goods purchase with the winning foreign bidder company and carry out all procedures for the importation of goods under the supervision of the Program Owner. He shall enjoy the import consignment charge and the supply charge as agreed with the Program Owner and according to the current prescriptions of the State. These charges shall be collected by the Importer from the good receiving units and shall be accounted for in the reciprocal capital of the project.

V. ACCOUNTING INTO THE STATE BUDGET

1. The JBIC loan used for allocation to the local projects shall all have to be accounted fully and in time into the State budget. The principle of accounting through the budget is to record entries of the Central Budget, record purposeful supplementary expenses in the local budget. Accounting through budget shall be conducted as follows:

1.1. Distribution of expenses on consultancy and on capital withdrawal: After completion of the process of capital withdrawal of each agreement, within a month, the Program Owner shall integrate the expenses on consultancy and consultancy expenses distributed to the localities at the rate of allocation of JBIC capital for each project in the locality, reach agreement with the Planning and Investment Service and send a formal written proposal to the Ministry of Finance for filling procedures for registering budget expenses.

1.2. For the value of imported goods:

After completion of capital withdrawal for each procurement contract, the Program Owner shall cooperate with the Importer and Supplier in distributing the value of imported goods correspondingly with each project in the localities, reach agreement with the provincial/municipal Planning and Investment Service and send an official document to the Ministry of Finance of Finance proposing to fill procedures for budget revenues and expenditures entry.

In case of disparity between the planned distribution and the amount of goods actually received (including the prescribed loss level), the localities shall work with the consigned units for goods supply in order to certify this disparity and report to the Program Owner for handling according to the principle: the losses shall be borne by the agency responsible for the unit where they occur. More concretely:

+ Losses in excess of the prescribed levels determined in the process of import shall be borne by the importer.

+ Losses in excess of the prescribed levels in the process of supply shall be borne by the unit assigned for the supply.

+ Losses in excess of the prescribed levels due to the slowness or delay by the locality in the reception of goods shall be borne by the locality.

Steps for accounting in Clauses 1.1 and 1.2:

The provincial/municipal Planning and Investment Service shall report the figures already agreed with the Program Owner to the Finance Service in order to coordinate in monitoring.

On reception of the official document of the Ministry of Planning and Investment, the Ministry of Finance shall register loan from JBIC, register purposeful supplementary expenditures in the local budget; the Financial Service shall register budget revenue from the above source and register advance payment to the investment managing agency; the latter shall register reception of budget allocation and register expenses for the project or construction.

The value of the recorded budget revenues and expenditures is equal to the value in foreign currency (JPY) multiplied by the rate announced by Vietcombank at the time of the money transfer (for payment to the contractor in the country) or the accounting rate set by the Ministry of Finance at the accounting time (for the consultancy charge, the capital withdrawal charge and the imported goods). The vouchers shall be made uniformly for budget accounting as commonly prescribed by the Ministry of Finance.

1.3. With regard to the construction cost, implementation of the program or project of payment to the domestic contractor shall be made in VND:

- Within 7 days after receiving the notice on money transfer of the Foreign Trade Bank, the Ministry of Finance shall fill procedures to record reception of JBIC loan and purposeful supplementary expenditures of the central budget to the local budget, in which the payment already made for each project must be specified.

- The Finance and Pricing Service shall record budget revenue from the above source, record advance payment for the investment managing agency, the latter shall record the source of budget and the capital allocation for the project. The evidence vouchers to record expenditures is made on expenditure order of the Budget Department of the Ministry of finance attached to the Notice of the External Financial Relations Department together with the amount paid to each project.

VI. RESPONSIBILITY OF RELATED AGENCIES

1. Program Owner:

- To guide the local managing agencies to make vouchers according to the forms prescribed by JBIC for each mode of capital withdrawal.

- To receive and check the payment dossier of the Investor, compare it with the capital plan of JBIC and the contract, gather them every two weeks and send them to the Ministry of Finance to request payment. In case the dossier is rejected, the Program Owner shall have to liaise with the project owner to complete the dossier.

- To select the importer or supplier; to distribute the value of imported goods, the capital withdrawal charge and the consultancy charge for the localities.

- Together with the consultant and the Ministry of Finance to inspect, supervise and audit the project.

- To integrate the reports on the progress of the program implementation for the Government, the Ministry of Finance and the sponsor.

2. The Ministry of Finance:

- To fill in procedures for acknowledgement of payment after receiving the full dossier as prescribed. In case of non-acceptance of payment, the Ministry of Finance (the External Financial Relations Department) shall have to inform the Program Owner immediately.

- To fill in procedures for registering revenues and expenses so that the Finance and Pricing Service can account them into the local budget.

- To withdraw capital to supplement the Special Account in time.

3. The agency directly managing the supply of investment capital in the localities:

- To check the volume of capital construction of the project already completed as currently prescribed on management of investment in capital construction in which the amount funded by JBIC must be specified as basis for the Ministry of Finance to pay the contractors.

- To inform the tempo of the volume of construction already completed and examined to the Finance and Pricing Service in order to coordinate in management.

4. The Planning and Investment Services of the provinces and cities:

- These are centers to manage the projects carried out in the localities. They shall have to make a comprehensive report on all stages from planning to implementation to the Program Owner. They shall regularly coordinate with and send to the Finance and Pricing Service the information concerning the projects in the localities.

- They shall have to implement the tasks delegated by the Program Owner in planning the JBIC capital compared with the criteria of JBIC and together with the Finance and Pricing Service allocate enough reciprocal capital for the projects in the localities.

- They shall draw up the list of contracts and their appendixes funded by JBIC and approved by the investment managing agency and send it to the Program Owner according to the set form.

5. The Finance and Pricing Services of the provinces and cities:

- To record revenues and expenditures for the local budget after receiving the vouchers on budget revenues and expenditures of the Ministry of Finance.

- To allocate reciprocal capital in time and consistent with the process of disbursement of foreign capital.

6. Vietcombank:

- To effect payment according to the modes of capital withdrawal stipulated in the Agreement on JBIC loan at the request of the Ministry of Finance and send notice appropriate to each form of payment to the Ministry of Finance and the Program Owner.

- To monitor and inform the Ministry of Finance of the balance of the Special Account after each payment and withdraw capital for the Special Account.

7. Investor:

- To elaborate the feasibility study report and technical design according to the procedures of investment in capital construction and organize the bidding or designate the contractor as currently prescribed.

- To sign the contract with the bid winner or the designated contractor. The amount funded by JBIC capital must be specified in the contract. To inspect or assign the supervisory agency to inspect the quality of the construction to see if it conforms with the technical design and certify it in the payment request of the contractor.

- To report the progress of capital withdrawal in kind or in money from the JBIC loan to the related managing agencies.

- To schedule the repayment of expenditures from the reciprocal capital in the country.

- To monitor the process of completion of the project, and base himself on the notice of payment to the con-tractor of the Ministry of Finance to conduct final settlement of accounts of the contract with the contractor.

- To conduct final settlement of accounts of the construction and parts of the construction as currently prescribed for the settlement of accounts in capital construction.

8. Contractor:

- To carry out the contract with the agreed volume, quality and tempo.

- To pay tax, assure warranty, repay advance capital as prescribed and according to the contract with the Investor.

- To carry out final settlement of accounts, test on completion, delivery and assure warranty of the completed project with the Investor.

VII. INSPECTION, REPORTING, FINAL SETTLEMENT OF ACCOUNTS

1. Yearly, the People�s Committees of the provinces and centrally-run cities and the Program Owner shall report to the Ministry of Finance, the Ministry of Planning and Investment on the progress of implementation of the Program and the situation of reception and use of the loan;

2. The Program Owner shall assume the main responsibility and coordinate with the Ministry of Finance in organizing periodical inspection, and unnotified inspection of the situation of management and use of the loan by the localities. In case of using loan inconsistent with prescriptions the capital already transferred shall be retrieved or the transfer of capital shall be temporarily suspended in order to take appropriate handling measures.

3. The Program Owner shall coordinate with the Investor, the Planning and Investment Service, the Finance and Pricing Service, the local investment managing agency in conducting test on completion and final settlement of accounts of the construction already finished, make an integrated report to the Prime Minister, simultaneously to the Ministry of Finance. To coordinate with the project evaluation team of JBIC in reappraising the implementation of the program at the end of the period of capital withdrawal under the Agreement.

4. The Program Owner shall take the main responsibility in the supply of information and data to the inspection, supervision and audit teams of JBIC and the Vietnamese Government.

VIII. IMPLEMENTATION EFFECT

This Circular takes effect 15 days after its signing and replaces Circular No. 89/TC-TCDN of December 18, 1997 of the Ministry of Finance. The contents not mentioned in this document shall comply with Circular No. 95/TC/DT of November 14, 1994 and Circular No. 18/TC/DTPT of March 12, 1996 of the Ministry of Finance.

In the process of implementation, if any question arises, the agencies are requested to report it to the Ministry of Finance in order to take appropriate measures of settlement.

For the Minister of Finance

Vice Minister
LE THI BANG TAM